though in this instance the memorandum is far more
extensive than the one submitted earlier.
What Board of Trustees' counsel has identified in that current filing
is not any claimed misapprehension on the part of this Court as to the
issues involved, but rather a disagreement with this Court's holding that
neither Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) nor Board of
Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001)
(nor any other case, for that matter) undercuts the continuing viability
of Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), which upheld the
constitutionality of Title VII against an identical Eleventh Amendment
attack (accord, Liberles v. County of Cook, 709 F.2d 1122, 1135 (7th
Cir. 1983); cf. United States v. City of Chicago, 573 F.2d 416, 423
(7th Cir. 1978)). Because such a substantive disagreement is not a
proper ground for a motion to reconsider (in which respect the felicitous
explanation in the Above the Belt Inc. v. Mel Bohannan Roofing, Inc., 99
F.R.D, 99, 101 (E.D. Va. 1983) has been reconfirmed by opinions of this
Court and — more importantly — of our Court of Appeals too
often to require citation), this opinion might well stop by simply
denying the motion for reconsideration on that procedural ground alone.
But Board of Trustees' counsel explains (Mem. 2) that the motion is
advanced to avoid the prospect of waiver that had defeated a like
Eleventh Amendment argument in Varner v. Illinois State Univ.,
226 F.3d 927, 936-37 (7th Cir. 2000). So this opinion will go on to
address the merits for a second time.
Whatever this Court's view may be of the contraction of previously
understood congressional power by a five-Justice majority in Kimel and
Garrett, it is of course duty bound to conform to those authorities
— and it will (equally of course) do so wherever they apply. But as
Opinion 3 pointed out (albeit succinctly), those opinions have themselves
expressly reconfirmed the continuing authority of Fitzpatrick. And what
Board of Trustees' counsel has ignored entirely is that the doctrine that
requires legislation that bars age-based and disability-based
discrimination to be subjected to rational-basis review does not extend
to the very different jurisprudential yardstick that applies to
discriminatory governmental conduct that is based on race or gender (see
Kimel, 528 U.S. at 83-84), as to which types of discrimination Section 5
of the Fourteenth Amendment provides solid underpinning for Title VII.
Indeed, the position that this Court marked out in the Opinion —
firmly grounded as it was in still-controlling United States Supreme
Court precedent — has been further buttressed by a decision from
our Court of Appeals that came down just two weeks ago. In one of the
particularly fortuitous instances of serendipity that judges encounter
with surprising frequency, this week's issue of United States Law Week
arrived in this Court's chambers on the very same day as Board of
Trustees' current notice of motion. And that issue (70 U.S.L.W. 1153)
carries a report of the opinion in Cherry v. University of Wis. Sys. Bd.
of Regents, No. 00-2435, 2001 WL 1028282, at *6.*8 (7th Cir. Sept. 7),
which bears directly on the issue here.[fn3A]
As stated in the preceding paragraph, Cherry reconfirms the substantive
conclusion reached by this Court in the Opinion, thus calling for the
swift denial of the principal part of Board of Trustees' current motion
for reconsideration. There is however one respect in which that motion
must be granted. That has to do with the fact that pro se litigant
Navarro had checked the "Yes" box in the printed Complaint form's
Paragraph 10, which reads:
The plaintiff is suing the defendant, a state or local
government agency, for discrimination on the basis of
race, color, or national origin (42 U.S.C. § 1983).
In that regard Board of Trustees is right in invoking the teaching of
Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) that the
State of Illinois (and hence Board of Trustees) is not a "person" within
the meaning of Section 1983. So to the extent that Navarro would hope to
call on Section 1983 as an added predicate for relief, she must fail.
Accordingly Board of Trustees' motion for reconsideration is denied,
except to the extent that it challenges any attempted claim by Navarro
under Section 1983, which claim is dismissed. Board of Trustees is once
again ordered to file an answer to the Complaint (as so limited) in this
Court's chambers, with a copy to be served on Navarro's counsel, on or
before October 1, 2001.
[fn1A] As Opinion 1 n.1 reflected, it had originally been dictated early
in the morning on September 11, but its transcription was delayed by the
tragic events of that morning.
[fn2A] Because this action had originally been filed pro se by Navarro,
the Complaint had understandably named "UIC Medical Center" (which
Navarro believed to have been her former employer) as defendant. In part
Opinion 2-3 addressed that erroneous designation sua sponte and ordered
Board of Trustees to be substituted as the proper defendant.
[fn3A] At the time that this Court dictated the Opinion, Cherry had not
yet reached the reproduction stage of the electronic services so as to be
capable of recapture via a Westlaw search, nor had the weekly packet of
Seventh Circuit opinions that would have included the Cherry slip opinion
been delivered to this Court's chambers. In any event, the opinion is now
readily available to any researcher, and it is troubling that Board of
Trustees' otherwise thorough memorandum of law reflects no awareness of
its existence. After all, a Westlaw or LEXIS search of cases citing
Kimel or Garrett would immediately have turned up Cherry — and any
lawyer preparing a legal memorandum is expected to conduct such a search
of any cases that he or she cites.